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2001 DIGILAW 1550 (RAJ)

Kajod Singh v. State of Rajasthan

2001-09-24

SUNIL KUMAR GARG

body2001
Honble GARG, J.–This appeal has been filed by the accused appellant against the judgment and order dated 18.6.1996 passed by the learned Special Judge, NDPS Cases, Bhilwara accused appellant for the offence under section 8/18 of the NDPS Act and sentenced him to under go RI for ten years and a fine of Rs. one lac, in default of payment of fine, to further undergo RI for two years. (2). The facts giving rise to this appeal, in short, are as follows:- On 29.4.1990 at about 8.15 AM, PW 2 Ram Singh, SHO, Police Station Kachhola lodged a written report Ex. P/1 with C.O., Thana Shakargarh District Bhilwara stating inter-alia that upon instructions of Superintendent of Police, Bhilwara at about 1.00 AM, he went for Nakabandi at Tiraha Amargarh, where PW 7 Dilip Singh and PW 1 Ajij Mohd. Constables posted at Police Chowki Amargarh also joined him and they were also patrolling at that place. It was further stated in the report that thereafter PW 2 Ram Singh alongwith PW 7 Dilip Singh and PW 1 Ajij Mohd. proceeded towards Bhojgarh Hotel and reached there at about 2.15 a.m. and at that time, he saw one person carrying beg on his shoulder and was going towards Hotel. That person was stopped and two motbirs, namely, Dildar and PW 4 Naresh Chandra were also called. On being asked, that person told his name as Kajod Singh (present accused appellant) and he further told that the was carrying doda post (poppy straw) in the bag for which he was not having any valid licence and thus, he has committed offence under Sec. 8/18 of the NDPS Act. Thereafter, doda post found in the bag was weighed and its weight was found to be 11 kg., out of which, two samples of 300 grms. each were taken and sealed separately on the spot and marked as B and C and the remaining doda post (poppy straw) was also sealed separately on the spot and marked as A. The fard of search and seizure prepared on the spot by PW 2 Ram Singh is Ex.P/3. There accused appellant was arrested through arrest memo Ex.P/4. The recovered articles and samples were handed over by PW 2 Ram Singh to the Malkhana Incharge PW 8 Ram Prasad, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex.P/12. There accused appellant was arrested through arrest memo Ex.P/4. The recovered articles and samples were handed over by PW 2 Ram Singh to the Malkhana Incharge PW 8 Ram Prasad, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex.P/12. On that report, a regular FIR Ex.P/2 was chalked out at Police Station Shakargarh District Bhilwara Thereafter, through letter Ex.P/8, two samples were given to PW 9 Pradeep Singh, who handed over the same to PW 5 A.V. Joseph, who was working in the SP Office, Bhilwara and, thereafter, PW 5 A.V. Joseph handed over the samples alongwith letter Ex.P/5 to PW 3 Sharafuddin for depositing them in the FSL, Jaipur and on 15.5.1990. PW 3 Sharafuddin deposited the samples in the FSL, Jaipur and obtained receipt Ex.P/5-I. The FSL report is Ex.P/9 in which it was reported that each of the sample contained in the packet marked B and C gave positive test for the presence of chief constituents of opium, hence the sample was of dried crushed capsules of poppy from which juice has been extracted. After usual investigation, police submitted challan against the accused appellant in the Court of Magistrate, from where the case was committed to the Court of Session. On 5.5.1992, learned Sessions Judge, Bhilwara framed charge for the offence under Sec. 8/18 of the NDPS Act against the accused appellant. The charge was read over and explained to the accused appellant. The accused appellant denied the charge and claimed trial. During trial, the prosecution in support of its case, examined as many as 9 witnesses and got exhibited several documents. Therefore, statement of the accused appellant under Sec. 313 Cr.P.C. was recorded. After conclusion of trial, the learned Special Judge, NDPS Cases, Bhilwara through his judgment and order dated 18.6.1996 convicted the accused appellant for the offence under section 8/18 of the NDPS Act and sentenced in the manner as indicated above holding inter-alia:- 1. That in the present case, provisions of Sections 42 and 50 of the NDPS Act are not applicable. 2. That link evidence has been produced by the prosecution showing that the seals on the samples from the date of seizure till they reached the FSL, Jaipur remained in-tact. 3. That prosecution has proved its case beyond all reasonable doubts against the accused appellant for the offence under Sec. 8/18 of the NDPS Act. 2. That link evidence has been produced by the prosecution showing that the seals on the samples from the date of seizure till they reached the FSL, Jaipur remained in-tact. 3. That prosecution has proved its case beyond all reasonable doubts against the accused appellant for the offence under Sec. 8/18 of the NDPS Act. Aggrieved from the said judgment and order dated 18.6.1996 passed by the learned Special Judge, NDPS Cases, Bhilwara, this appeal has been filed by the accused appellant. (3). In this appeal, the following submissions have been raised by the learned counsel appearing for the accused appellant:- 1. That since personal search of the accused appellant was made by PW 2 Ram Singh, therefore, compliance of mandatory provisions of Sec. 50 of the NDPS Act was necessary and since compliance of Sec. 50 of the NDPS Act has not been made in the present case, therefore, whole trial against the accused appellant stands vitiated and he is entitled to acquittal on this ground alone. 2. That chain of link evidence that seals on the samples from the date of seizure till they reached the FSL, Jaipur, is not complete, as there is no evidence as to who gave sample from malkhana to PW 9 Pradeep Singh as there is no entry in the Malkhana Register Ex.P/12 that samples after taking out from Malkhana were handed over to PW 9 Pradeep Singh, This, it cannot be said that the seals of the samples remained intact and the possibility of tampering with the samples cannot be ruled out and hence, the accused appellant is entitled to benefit of doubt. 3. That contraband article alleged to have been recovered from the accused appellant was doda post (poppy straw), which is defined in sub clause (xviii) of Sec. 2 of the NDPS Act and in such circumstances, he should have been charged for the offence under Sec. 8/15 of the NDPS Act instead of 8/18 of the NDPS Act and thus, conviction of the accused appellant for the offence under section 8/18 of the NDPS Act is palpably illegal and on this ground also, the accused appellant should be acquitted. Hence, it was prayed that his appeal be allowed and the accused appellant be acquitted of the charge framed against him. (4). Hence, it was prayed that his appeal be allowed and the accused appellant be acquitted of the charge framed against him. (4). On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Judge, NDPS Cases, Bhilwara. (5). I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case. (6). To appreciate the above contentions, evidence oral as well as documentary produced in this case has to be looked into. Point No. 1 (7). On this point, the case of the learned counsel for the accused appellant is that since personal search of the accused appellant was made, therefore, compliance of Sec. 50 of the NDPS Act was necessary and in absence of this, whole trial against the accused appellant stands vitiated and he is entitled to acquittal on this ground alone. (8). The learned Special Judge held that since it was a case of chance recovery, therefore, provisions of Sec. 50 of the NDPS Act are not applicable and in coming to the conclusion that provisions of Sec. 50 of the NDPS Act are not applicable in the present case, he has placed reliance the the decision of the Honble Supreme Court in State of Punjab vs. Balbir Singh (1). (9). The question that arises for consideration is whether the above findings of the learned Special Judge that provisions of Sec. 50 of the NDPS Act are not applicable in the present case are correct one or not. (10). From the report Ex.P/1, which was lodged by PW 2 Ram Singh, it clearly appears that the accused appellant was having a bag on his shoulder and when he was interrogated by PW 2 Ram Singh, he told his name and he also told him that the bag, which he was carrying with him, contained doda post. Since it has come in picture that accused appellant was having doda post (poppy straw), therefore, at that stage it was imperative on the part of PW 2 Ram Singh to ask the accused appellant under the provisions of Sec. 50 of the NDPS Act whether he wanted to be searched before the Magistrate or Gazetted officer. The present case cannot be called to be a case of chance recovery. (11). The present case cannot be called to be a case of chance recovery. (11). It may be stated here that where a person is searched on suspicion and that suspicion is ruled out, but on the contrary, any narcotic drug is found, in that eventuality, provisions of Sec. 50 of the NDPS Act would not be applicable. But, where before search, it has been revealed that accused was having contraband article, in such a situation, it becomes imperative on the part of the Search officer to comply with the mandatory provisions of Sec. 50 of the NDPS Act Since in the present case, when it has been revealed before search of the accused appellant that he was having doda post (poppy straw), in such a situation, it was the bounden duty of PW 2 Ram Singh to inform the accused appellant whether he wanted to be searched before the Magistrate or Gazetted Officer and compliance of Sec. 50 of the NDPS Act was must. (12). So far as the decision of Honble Supreme Court in Balbir Singhs case (supra) is concerned, in that case, Honble Supreme Court held that if a Police Officer without prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr.P.C. and when such search is completed at that stage, Sec. 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. (13). In my considered opinion, the facts of the present case are somewhat different. In the present case, the accused appellant was interrogated by PW 2 Ram Singh because he was having a bag on his shoulder and on interrogation, it has been revealed that bag contained doda post (poppy straw) and, therefore, at that stage, it was the duty of PW 2 Ram Singh to ask the accused appellant whether he wanted to be searched before the Magistrate or Gazetted Officer and the compliance of Sec. 50 of the NDPS Act was necessary. (14). (14). The Honble Supreme Court in State of Punjab vs. Labhsingh (2), has held that accused has valuable right to be informed of his right to be searched in the presence of a Gazetted Officer, the search officer would invariably conduct the search subserving the statutory right given under sec. 50 of the NDPS Act. Each case should be considered in the light of the facts and circumstances in which the contraband was seized, viz., time when the search was conducted, the place where it was seized, whether police had prior information of the contraband being in transport or place of concealment, whether there was proper opportunity to the police to secure the presence of a Gazetted Officer, whether the delay in search and seizure would result in the escape of the accused form arrest or contraband would be destroyed or whisked away and host of all relevant attendant circumstances. Each case depends upon its own factual scenario and no exhaustive or mathematical formula of universal application can be laid down. (15). The Honble Supreme Court in Namdi Francis Nwazor vs. Union of India and Anr. (3), has held that search of handbag or the like which a person is carrying amounts to search of his person and provisions of Sec. 50 of the NDPS Act are attracted in such cases. From this point of view also, the provisions of Sec. 50 of the NDPS Act would be applicable in the present case. (16). This Court in Nasir Hussain vs. State of Rajasthan (4), has held that the words of Sec. 50(1) of the NDPS Act indicating `search of a person are wide enough to include a search made from the belongings of the accused carried by him ad in such circumstances, compliance of Sec. 50 of the NDPS Act is necessary. (17). For the reasons stated above, it is held that in the present case, compliance of mandatory provisions of Section 50 of the NDPS Act was necessary and present case cannot be called to be a case of chance recovery and the findings of the learned Special Judge on this count are liable to be set aside. (18). Now it is to be seen whether in the present case compliance of Sec. 50 of the NDPS Act has been made or not. (19). (18). Now it is to be seen whether in the present case compliance of Sec. 50 of the NDPS Act has been made or not. (19). Before proceeding further, it may be stated here that Honble Supreme Court in so many cases has held that the provisions of Sec. 50 of the NDPS Act are mandatory in nature and violation of these provisions would per se be fatal to the prosecution case or in other words, non-compliance of these provisions would have the effect of vitiating the entire trial. (20). From the statement of PW 2 Ram Singh, who conducted search and seizure in the present case, it is very much clear that before making search of the accused appellant, he did not ask the accused appellant whether he wanted to be searched before the Magistrate or Gazetted Officer and this fact was frankly admitted by PW 2 Ram Singh and PW 1 Ajij Mohd. has also admitted this fact. The statement of PW 7 Dilip Singh on the point that accused appellant was asked about that option cannot be accepted in view of the clear and categorical statement of PW Ajij Mohd. and PW 2 Ram Singh that no such option was given to the accused appellant by PW 2 Ram Singh before making his search. (21). Hence, it is held that in the present case compliance of mandatory provisions of Sec. 50 of the NDPS Act has not been made, as before making search of the accused appellant, he was not asked by PW 2 Ram Singh whether he wanted to be searched before the Magistrate or Gazetted Officer and non-compliance of the mandatory provisions of Sec. 50 of the NDPS Act vitiates the entire trial against the accused appellant and he is entitled to acquittal on this ground alone. Point No. 2 (22). This point relates to link evidence. (23). PW 9 Pradeep Singh is the person, who took the sample upto SP Office, Bhilwara. He states that he took two samples on 10.5.1990 from Thana Shakargarh and handed over the same to PW 5 A.V. Joseph, who was at the relevant time Constable in the SP Office, Bhilwara and took receipt on letter Ex.P/8. (24). PW 9 Pradeep Singh nowhere states from whom he took samples. He only states that he took samples. (25). He states that he took two samples on 10.5.1990 from Thana Shakargarh and handed over the same to PW 5 A.V. Joseph, who was at the relevant time Constable in the SP Office, Bhilwara and took receipt on letter Ex.P/8. (24). PW 9 Pradeep Singh nowhere states from whom he took samples. He only states that he took samples. (25). As per the case of the prosecution, PW 8 Ram Prasad was the Malkhana Incharge at the relevant time. He no where states in his/statement that he handed over two samples on 10.5.1990 to PW 9 Pradeep Singh, rather he states that he sent samples through nd Kumar and who is Nand Kumar, it is for the prosecution to know. This witness clearly admits later on that he did not send the samples to SP Office. (26). The relevant malkhana Register is Ex.P/12, in which, there is entry that one bag of 11 kgs. and two samples of 300 grms. each were deposited in the malkhana and there is also entry that on 17.7.1990, two packets which were sent to FSL, Jaipur were received back, but thee is not entry in that Malkhana Register Ex.P/12 that two samples were taken out from Malkhana and were handed over to PW 9 Pradeep Singh. Not only this, PW 8 Ram Prasad, who was at the relevant time Malkhana Incharge, does not say that the samples, which were returned back from FSL after examination, were deposited in Malkhana on 17.7.1990 and the entries of this fact were also not in his writing. (27). Thus, there is no evidence of the prosecution as to when the samples were taken out from malkhana for sending them to SP Office, Bhilwara through PW 9 Pradeep Singh and there is also no evidence as to who gave the samples to PW 9 Pradeep Singh. The Malkhana Incharge at the relevant time was PW 8 Ram Prasad, who nowhere states in his statement recorded in Court that he handed over the samples to PW 9 Pradeep Singh nor PW 9 Pradeep Singh, who deposited the sample in SP Officer, states that he took samples from PW 8 Ram Prasad. PW 8 Ram Prasad further states samples were sent to SP Office through Nand Kumar, but later on, he admits that samples were not sent to SP Office. PW 8 Ram Prasad further states samples were sent to SP Office through Nand Kumar, but later on, he admits that samples were not sent to SP Office. Apart from this, in the Malkhana Register Ex.P/12, there is also no entry of the fact that samples were sent through PW 9 Pradeep Singh. (28). Thus, link evidence is missing in the present case and from the evidence on record, it cannot be reasonably presumed or gathered that the seals put on the samples remained intact till they reached the hands of the Chemical Examiner and the possibility of tampering with the samples also cannot be ruled out. In these circumstances, the accused appellant is entitled to benefit of doubt. Point No. 3 (29). Since the accused appellant is going to the acquitted mainly on point No. 1, therefore, point No. 3 is not being considered. (30). For the reasons stated above, it is held that prosecution has not been able to prove its case beyond all reasonable doubts against the accused appellate for the offence under Sec. 8/18 of the NDPS Act and thus, the findings of conviction recorded by the learned Special Judge against the accused appellant for the said offence cannot be sustained and are liable to be set aside and the accused appellant is entitled to acquittal and this appeal deserves to be allowed. Accordingly, the appeal filed by the accused appellant Kajod Singh is allowed and the impugned judgment and order dated 18.6.1996 passed by the learned Special Judge, NDPS Cases, Bhilwara are set aside and the accused appellant is acquitted of the charge for the offence under Sec. 8/18 of the NDPS Act. Since accused appellant is in jail, he be released forthwith, if not required in any other case.